Arizona senate panel votes to curb 'wrongful birth' suits

A Senate panel voted in favor of overturning an Arizona Supreme Court ruling that set precedent almost thirty years ago in “wrongful birth” and “wrongful life” lawsuits. If the ruling passes, clinicians will not be responsible for cost of living expenses for healthy or unhealthy children born in these situations.

“Wrongful birth” lawsuits typically occur when a clinician fails to properly communicate the results of prenatal screenings or fetal risk factors to prospective parents and a disabled child is born. In many states across the country, such suits are now commonplace — particularly when the option to abort is still viable. “Wrongful life” suits are generally filed when an undesired pregnancy results after vasectomy or sterilization. In these cases, the current laws in Arizona allow the parents to sue for the costs of raising and caring for that child.

Precedent was set in 1983 when a low-income Tuscon couple petitioned the court for the right to sue when the wife became pregnant after her husband's vasectomy. As a low-income family with three children, the couple deliberately took steps to prevent any additional pregnancy. When the vasectomy failed to prevent the birth of their fourth child, the couple won the right to sue — not just for the inadequate vasectomy, but also for the cost of raising that child. The couple argued that abortion was not an option for them on religious grounds. That historic court ruling holds the potential to dramatically change the face of “wrongful life” suits.

In fact, that landmark case went all the way to the state's Supreme Court. In deliberating, the justices noted that jurors would have to offset any monetary award in “wrongful birth” cases with considerations of the value in having a relationship with a healthy child. This particular case was settled out of court, but it laid the groundwork for future “wrongful life” cases.

Proponents of this new bill say that clinicians in such cases should only be held liable for medical malpractice, that is, for breaching standards of care. Clinicians should not be forced to pay the substantial cost of living expenses for a healthy or unhealthy child, they argue. Under the bill, physicians could still be held liable for withholding prenatal information, but mere mistakes, such as failing to perform tests or detect birth defects, would not necessarily make a physician liable for the future care of that child.

Opponents of the legislation argue that the bill deprives a woman of choice, and of making critical decisions about family. If the bill passes, Arizona would be among the nine states, at present, that ban or attempt to curtail “wrongful birth” and “wrongful life” lawsuits.